Orlando: asking the real question about legal abortion

by John Orlando

There is a lot of confusion today about the abortion debate that needs to be clarified so that we can have public discourse about the real issues.

John Orlando, Ph.D.

For instance, Kamala Harris claimed that the law does not tell men what they can do with their bodies.  But this is wrong.  Nearly every law tells people what they can do with their bodies.  For instance, the law against assault tells me that I cannot use my hand to punch another person.  The law even tells you what you can do with your body where there is no victim involved.  Laws against heroin use, prostitution, gambling, etc. all tell people what they can do with their bodies when there is no victim involved.

It is also confused to claim that it is a man vs. woman issue.  Millions and millions of women are pro-life, including the original Roe of Roe v. Wade fame, who later regretted her decision and lobbied against allowing abortions.  One interesting sign carried by a woman at a pro-life rally read “Lesbian, feminist, pro-life.” 

Roe v. Wade

There is also a lot of confusion about Roe v. Wade and even what the Supreme Court does. The Supreme Court only interprets the Constitution, is it not supposed to make any laws.  The problem is that Roe v. Wade had no constitutional basis. Ruth Ginsburg was against Roe v. Wade, as well as many other liberal constitutional theorists, for this reason.    

The Roe v. Wade decision ignored the right to life, which is clearly stated in the Constitution.  Second, the Constitution says nothing about a right to abortion.  Roe v. Wade instead invented a right to privacy to justify abortion, even though the Constitution never uses the word “privacy.”  The Court simply made it up, which was Ginsburg’s objection.  

Third, Roe v. Wade also asserted that a state can forbid abortion after viability because at this point the baby becomes a “potential person.”  But the fetus is a potential person at all points during the pregnancy, since “potential” means that if all works out, then in the future you can become that thing.  It also justified viability on grounds that the baby is no longer dependent on someone to live, but of course, a baby is dependent on someone to live for the first few years after it is born.  

In fact, a fetus has all of the parts of a human by week 8, and nobody has ever come up with a coherent reason to believe that a baby is somehow not human until the last toe has emerged from the womb.  For this reason, Michael Tooley, a famous pro-abortion legal theorist, conceded that if you are pro-abortion, you need to support infanticide, killing a baby after it is born, which he did.  While this did not make the pro-abortion side happy, you need to admire his honesty.   

The underlying issue 

Because there is no way to argue that a fetus is not a person, the most famous pro-abortion legal theorist, Judith Javis Thomson, correctly stated that the abortion debate comes down to the question: Can one person kill another person because that second person’s existence is going to be burden to the first person for the next nine or fewer months?  

The problem is that the law simply does not allow this in any situation.  If my mother moves in with me due to poor health and taking care of her will be a burden for the next nine months, that does not give me the right to kill her.  Roe v. Wade invented a unique right that it gave certain people that nobody else, including men, have. 

Moreover, we are ignoring the fact that in the case of 99.9% of pregnancies, the person ending the other’s life brought the other person into existence, but had numerous opportunities to avoid it by: 1. Not having sex, 2. Using birth control, 3. Using a morning after pill, etc.  This makes it even harder to argue for a right to kill to remove a burden.

Once the confusion has been cleared, we have the fundamental question to be decided: Should one person be allowed to kill another person because the other person’s existence is a burden to them for the next nine or fewer months? I am not arguing for one side or another, only pointing out that this is the issue that is now being decided democratically, as each state will decide what laws it wants to implement given the values of its people. 

The author is a South Burlington resident. John Orlando, PhD, has spent more than 20 years developing and growing educational programs at a variety of colleges and universities, as well as teaching faculty how to be great instructors both online and in face-to-face classrooms. He writes and edits articles on online teaching and learning for The Teaching Professor and has published articles and delivered many presentations, workshops, and keynotes on online education, teaching with technology, and social media. He is a passionate education consultant, helping teachers learn how to use technology to transform their practice and improve student performance, and has managed faculty training programs at the University of Vermont, Norwich University, and Northcentral University as well as employee training programs in the corporate sector.

Categories: Commentary

5 replies »

  1. Thank you! Your article on abortion is very well reasoned. Unfortunately, unrestricted abortion up to the time of birth has already been decided and made legal in Vermont. Our abortion laws and practices in Vermont are likened to those in North Korea and China.

    Many Progressive Politicians in Vermont are seeking to enshrine unrestricted abortion and other perverse reproductive practices into our Vermont State Constitution by adding the Article 22 Language of allowing, “personal reproductive autonomy.”

    This phrase is very loose and undefined. Unelected judges and lawyers will define its meaning and scope. Challenge your thinking on this phrase. Many have and believe if it is passed, an unlimited list of reprehensible practices will be allowed, including the varied use of aborted baby body parts.

    Please make Vermont Voters aware of the 2022 Ballot Question and the dark depravity and perversion this Article would add to our Constitution if approved.


    • vtbeliever: your comment suggests that Progressives are behind passing Art 22. It is progressives in all parties that support passing the Article.

  2. Oh my Goodness!! Living proof that logic has NOT been entirely irradicated from mankind!

  3. I think Dr. Orlando’s use of the word ‘burden’ needs clarification. Something that is merely ‘carried’, or ‘emotionally difficult to bear’, or ‘of great worry’, has an inherent vagary that is more accurately addressed in our Constitution and rule of law. A mere ‘burden’ should never be the singularly sufficient cause to take a life, born or unborn.

    The first litmus test is to establish personhood. And, yes, this too is subjective. In the now infamous SCOTUS Dred Scott decision of 1857, slaves were deemed to not be ‘citizens’ and, therefore, had no Constitutional rights or protections. Owners could take a slave’s life whenever it suited them.

    But the consensus perception changed, through reason and massive conflict. Today ‘viability’ is the benchmark for determining the citizen status of the unborn. But, as Orlando points out, even a one-year-old child isn’t ‘viable’ without assistance. So, what we are seeing now, as a result of the overturning of Roe v. Wade, is the fruition of this debate in each separate State (democracy’s laboratories). We’re going to see variations.

    The second litmus test is one of ‘self-defense’. Will a pregnancy create a physical threat to the life of either the mother or the unborn child? And where does rape fall into this consideration? Where do the father’s rights fall? And as above, each State will have various positions.

    Again, because Roe v. Wade was overturned means the debate continues in each State and will, likely, have differing outcomes in each State, at least until such time as one State’s determinations show a more and more acceptable (i.e., universal) position that creates a consensus for other States to consider.

    But importantly, we must understand that a perfect consensus will never be reached because humans are imperfect. We change. And agree or disagree with the current state of affairs, no other system of governance provides society with what Milton Friedman described as”… the most effective system we have discovered to enable people who hate one another, to deal with one another, and help one another.”

    As crass is this metaphor may be in this circumstance, it seems none-the-less appropriate in this context.

    Whatever we do with regard to this topic and our Constitution, ‘don’t throw the baby out with the bathwater.’